Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 1301

Opposed MOTION for Leave to File a Brief Re The Term "Browser Application" by Adobe Systems Incorporated, Amazon.com Inc., CDW Corporation, Google Inc., J.C. Penney Corporation, Inc., Staples, Inc., The Go Daddy Group, Inc., Yahoo! Inc., YouTube, LLC. (Attachments: # 1 Exhibit 1 - Defs Brief re the Term "Browser Application", # 2 Exhibit C to Brief - p353-meyrowitz82, # 3 Exhibit D to Brief - IRIS Hypermedia_Haan92, # 4 Exhibit E to Brief - ADBE0196713 Rowe92, # 5 Exhibit F to Brief - DBE0196715 Hindus93)(Wolff, Jason) (Additional attachment(s) added on 2/1/2012: # 6 Certificate of Authorization to File Under Seal, # 7 Text of Proposed Order) (mjc, ).

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

EOLAS TECHNOLOGIES, INC.,
Plaintiffs,
v.

Civil Action No. 6:09-CV-446 LED
JURY TRIAL DEMANDED

ADOBE SYSTEMS INC., ET AL.,
Defendants.

DEFENDANTS’ BRIEF REGARDING THE TERM “BROWSER APPLICATION”

DEFENDANTS’ BRIEF REGARDING THE TERM “BROWSER APPLICATION”

The meaning of the term “browser application” is disputed by the parties and their
respective experts. To avoid the legal scope of the term being argued to the jury and irrelevant
testimony being offered at trial, Defendants request that the Court construe this term.1
Defendants’ Construction
a program used to view or browse electronic
documents2

Plaintiffs’ Construction
A client program that presents an interface and
processes requests on behalf of a user to
display, and traverse hyperlinks within,
hypertext and/or hypermedia documents that
are located on the Internet3

The core disputed issue is whether the construction of “browser application” can properly
be limited to a “web browser application” (as Plaintiffs contend) or whether it should be
construed to also encompass other types of “browser applications” such as those that existed
before the World Wide Web was launched in the 1990’s (as Defendants contend).
The term “browser application” is not defined in the patent specification. Neither party
offered it for construction because both parties initially offered liability related evidence that did
not limit the meaning in any significant way, or in a manner that indicated there was a dispute
over the meaning.4 Recently, to avoid some of defendants’ prior art, Plaintiffs’ liability expert
Dr. Martin construed “browser application” in the narrow manner noted above.
The claims broadly refer to a “browser application” without qualification. In fact certain
dependent claims show that the browser is not limited to a “web” browser at all.5

1

O2 Micro Intern. Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1361 (Fed. Cir. 2008).
Ex. A, 10/27/2011 Phillips Report at 135, ¶315.
3
Ex. B, 11/15/2011 Martin Rebuttal Report at 21, ¶48. Plaintiff’s expert alternately defines the
term as a “web browser.” Id.
4
Plaintiffs, for instance, offered infringement theories based on browser applications that were
not “web browsers” per se, such as the iTunes program; likewise Defendants offered
invalidity theories based on prior art that were also not “web browsers,” such as HyperCard
and MediaView.
5
See, e.g., ’985 patent, asserted claims 18, 22, 38, 42, which limit the “text formats” to “HTML
tags.” Given that the claimed “text formats” need not be “HTML tags” or even “tags,” the
2

DEFENDANTS’ BRIEF REGARDING THE TERM “BROWSER APPLICATION” - Page 1

Importantly, the claims in the original specification filed in 1994 refer to a “hypermedia
browser application.”6 The term “browser application” without qualification was added to the
independent claims later.7 Eventually Plaintiffs removed the qualifier “hypermedia” before
“browser application” entirely.8
The specification likewise supports a broad construction. The specification use the terms
“browser,” “browser program,” “browser software,” “browser client,” “browser application,” and
“hypermedia browser,” but not the term “web browser.” The specification states that examples of
browser programs are the Mosaic and Cello software.9 The figures provide block diagrams
showing a “browser client” but do not limit the browser to a “web” browser. The specification
states simply that “browser client 208” “is a process that a user of a client computer 200 invokes
in order to access various data objects, such as hypermedia documents, on a network 206.”10 The
specification also uses the term “browser application” in other contexts, such as referencing a
“client-based image browser application” that relays information to a “hypermedia browser
application.”11 In short, nothing in the specification justifies limiting the claimed genus of
“browser applications” to the species “web browser application.”
Furthermore, neither the claims nor the specification limit the claims to the Web or the
Internet, or even a wide-area network. Like the Court’s construction of “text format” and “embed
text format,” the construction of client workstation and network server is broad and framed in
doctrine of claim differentiation weighs heavily against Plaintiffs’ argument to limit the
“browser application” to a “web browser application.” The Court’s broad construction of the
terms “text formats,” “embed text formats,” “network server,” and “client workstation”
compels a similarly broad construction of “browser application.”
6
See, e.g., D.I. 570-1 at 33 of 190 (claim 2).
7
See, e.g., D.I. 570-1 at 73 of 190 (claim 1).
8
See, e.g., D.I. 570-2 at 42 of 94 (claim 2).
9
’906 patent, 1:9-13, 10:17-18.
10
’906 patent at 9:15-17.
11
’906 patent at 11:67-12:8.
DEFENDANTS’ BRIEF REGARDING THE TERM “BROWSER APPLICATION” - Page 2

terms of information requesters and information providers.12 FIG. 2 shows two or more
computers connected to the same network (e.g. server A 106 is connected to clients 108 and
104), and the specification expressly states that the “object 16” and “file 40 may reside at any of
the computers shown in FIG. 2” and that “it is not necessary to traverse long distances via the
Internet in order to retrieve the data object.”13 The specification notes that in FIG. 2 the “Internet
100 may be replaced by any suitable computer network.”14 The additional imported limitations in
Plaintiffs’ proposed construction, such as traversing hyperlinks and limiting the location of the
hypermedia document, and even “hypertext” and “hypermedia” are arbitrary and unnecessary.
Additionally, during prosecution of the patents, the USPTO rejected the claims based on
prior art that disclosed “browser applications” that were not “web” browser applications, and
Plaintiffs did not challenge this interpretation. Writing in the ’906 patent file history, the
Examiner, presumed to be a person ordinary skill in the art, found that “at the time of the
invention, one of ordinary skill in the art would consider the BookManager READ program of
Cohen as a ‘browser application,” even though it was not a “web” browser application.15
Plaintiffs did not dispute this finding regarding the Cohen prior art.
There are many other examples of “browsers” in prior art that pre-date the World Wide
Web. A 1982 paper regarding hypermedia systems remarks after discussing “browsers” that “A
browser-like interface would be attractive in other environments as well.”16 A 1986 paper

12

D.I. 914 at 23 (“the Court construes ‘client workstation’ as a computer system connected to a
network that serves the role of an information requester,’ and a ‘network server’ as ‘a
computer system that serves the role of an information provider.’”)
13
’906 patent at 5:14-23.
14
’906 patent at 3:60-63.
15
D.I. 573-1 at PH_001_0000786973, see also PH_001_0000786972 (“‘The BookManager
READ product can then manage, search, and show the on-line books created by
BookManager Build.’ It is noted that this is the same functionality as a browser application.”)
16
Ex. C, (Meyrowitz82) at 399 [ADBE018751, p353-meyrowitz.pdf].
DEFENDANTS’ BRIEF REGARDING THE TERM “BROWSER APPLICATION” - Page 3

discussing a hypertext system describes the use of a “browser” to view electronic documents.17
Plaintiff University of California has published other papers referring to “browsers” more
generically too.18 Even a 1990 Adobe documents refer to Acrobat Reader as a “browser”19 and it
is undisputed that Acrobat is not a web browser.
Even the inventors testified in effect that a “browser application” is not limited to a “web
browser.” First named inventor Michael Doyle testified that his MetaMAP patent20 was a
browser.21 There is no dispute that MetaMAP was not a web browser. Cheong Ang, also a coinventor, testified regarding the patent that “[i]t’s not restricted to the web and HTML
documents.”22
Consequently, the court should reject the Plaintiff’s proposal to limit the claimed
“browser application” to a “web browser application” and should construe “browser application”
as “a program used to view or browse electronic documents.”

17

Ex. D, (Haan92) at 38, 40, 41 [ADBE018751, IRIS Hypermedia.pdf].
Ex. E, (Rowe92) at §1, Fig. 1; Ex. F, (Hindus93) at 384 (“The postcall Browser
application…”) and Fig. 3.
19
D.I. 869-09 at ADTXT0002025 (“a viewer and browser will be written that will read IPS
[now PDF] files, and render those files on displays”) (emphasis added).
20
See ’906 patent at 11:58-59, referencing U.S. Patent No. 4,847,604 as the MetaMAP
invention.
21
Ex. G, (8/10/11 Doyle Tr.) at 150:21-22, 151:19-22, 152:7-10; also see Ex. H, (8/11/11 Doyle
Tr.) at 443:18-446:5.
22
Ex. I, (7/21/11 Ang Tr.) at 293:5-20.
18

DEFENDANTS’ BRIEF REGARDING THE TERM “BROWSER APPLICATION” - Page 4

Dated: January 26, 2012

Respectfully submitted,
FISH & RICHARDSON P.C.
By: /s/ Jason W. Wolff
Frank E. Scherkenbach
E-mail: [e-mail]
Proshanto Mukherji
Email: [e-mail]
FISH & RICHARDSON P.C.
One Marina Park Drive
Boston, MA 02110-1878
[phone] (Telephone)
[phone] (Facsimile)
David J. Healey
E-mail: [e-mail]
FISH & RICHARDSON P.C.
1 Houston Center
1221 McKinney Street, Suite 2800
Houston, TX 77010
[phone] (Telephone)
[phone] (Facsimile)
Jason W. Wolff
E-mail: [e-mail]
FISH & RICHARDSON P.C.
12390 El Camino Real
San Diego, CA 92130
[phone] (Telephone)
[phone] (Facsimile)
Michael E. Florey
Email: [e-mail]
FISH & RICHARDSON P.C.
3200 RBC Plaza
60 South Sixth Street
Minneapolis, MN 55402
[phone] (Telephone)
[phone] (Facsimile)
Counsel for Defendant
ADOBE SYSTEMS INCORPORATED
/s/ Edward R. Reines (with permission)
Edward R. Reines

DEFENDANTS’ BRIEF REGARDING THE TERM “BROWSER APPLICATION” - Page 5

Jared Bobrow
Sonal N. Mehta
Aaron Y. Huang
Andrew L. Perito
WEIL, GOTSHAL & MANGES LLP
201 Redwood Shores Parkway
Redwood Shores, CA 94065
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Doug W. McClellan
Email: [e-mail]
WEIL, GOTSHAL & MANGES LLP
700 Louisiana, Suite 1600
Houston, TX 77002
Telephone: [phone]
Facsimile: [phone]
Jennifer H. Doan
Joshua R. Thane
Shawn A. Latchford
Stephen W. Creekmore, IV
HALTOM & DOAN
Crown Executive Center, Suite 100
6500 Summerhill Road
Texarkana, TX 75503
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Otis Carroll
Deborah Race
IRELAND, CARROLL
& KELLEY, P.C.
6101 South Broadway, Suite 500
Tyler, Texas 75703
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendants
AMAZON.COM INC. AND
YAHOO! INC.

DEFENDANTS’ BRIEF REGARDING THE TERM “BROWSER APPLICATION” - Page 6

/s/ Proshanto Mukherji (with
permission)
Thomas M. Melsheimer
Email: [e-mail]
Neil J. McNabnay
Email: [e-mail]
Carl E. Bruce
Email: [e-mail]
FISH & RICHARDSON
1717 Main Street, Suite 5000
Dallas, TX 75201
Tel: [phone]
Proshanto Mukherji
Email: [e-mail]
FISH & RICHARDSON
One Marina Park Drive
Boston, MA 02110-1878
Telephone: [phone]
Attorneys for Defendant
THE GO DADDY GROUP, INC.
/s/ Douglas E. Lumish (with
permission)
Douglas E. Lumish
Jeffrey G. Homrig
Joseph H. Lee
Parker C. Ankrum
KASOWITZ, BENSON, TORRES &
FRIEDMAN, LLP
333 Twin Dolphin Drive, Suite 200
Redwood Shores, CA 94065
Tel: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Jonathan K. Waldrop
KASOWITZ, BENSON, TORRES &
FRIEDMAN, LLP
1360 Peachtree St., N.E.
Suite 1150
Atlanta, GA 30309
Tel: [phone]
Email: [e-mail]
James R. Batchelder
Sasha G. Rao
Brandon H. Stroy
Rebecca R. Hermes
DEFENDANTS’ BRIEF REGARDING THE TERM “BROWSER APPLICATION” - Page 7

Lauren N. Robinson
ROPES & GRAY LLP
1900 University Avenue, 6th Floor
East Palo Alto, CA 94303-2284
Tel: [phone]
Email:
[e-mail]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Han Xu
ROPES & GRAY LLP
Prudential Tower, 800 Boylston St.
Boston, MA 02199-3600
Tel: [phone]
Email: [e-mail]
Daryl Joseffer
Adam Conrad
KING & SPALDING
1700 Pennsylvania Avenue, NW
Suite 200
Washington, DC 2006-4707
Tel: [phone]
Email: [e-mail]
Email: [e-mail]
Michael E. Jones
Allen F. Gardner
POTTER MINTON
110 N. College, Suite 500
Tyler, TX 75702
Tel: [phone]
Email: [e-mail]
Email: [e-mail]
ATTORNEYS FOR DEFENDANTS
GOOGLE INC. AND YOUTUBE
LLC

DEFENDANTS’ BRIEF REGARDING THE TERM “BROWSER APPLICATION” - Page 8

/s/ Christopher M. Joe (with
permission)
Christopher M. Joe
Brian Carpenter
Eric W. Buether
BUETHER JOE & CARPENTER
1700 Pacific, Suite 2390
Dallas, TX 75201
Tel: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendant
J.C. PENNEY CORPORATION,
INC.
/s/ Donald R. Steinberg (with
permission)
Mark Matuschak
Donald R. Steinberg
Alexandra Boudreau
WILMER CUTLER PICKERING
HALE AND DORR, LLP
60 State Street
Boston, MA 02109
Tel. [phone]
[e-mail]
[e-mail]
[e-mail]
Kate Hutchins
WILMER CUTLER PICKERING
HALE AND DORR, LLP
399 Park Avenue
New York, NY 10022
Tel: [phone]
[e-mail]
Daniel V. Williams
WILMER CUTLER PICKERING
HALE AND DORR, LLP
1875 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
202.663.6012
[e-mail]
Joe W. Redden, Jr.
Michael E. Richardson
BECK REDDEN & SECREST
1221 McKinney
DEFENDANTS’ BRIEF REGARDING THE TERM “BROWSER APPLICATION” - Page 9

Suite 4500
Houston, TX 77010
Tel: [phone]
[e-mail]
[e-mail]
Attorneys for Defendant
STAPLES, INC.

DEFENDANTS’ BRIEF REGARDING THE TERM “BROWSER APPLICATION” - Page 10

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the above and foregoing
document has been served on January 26, 2012 to all counsel of record who are deemed to have
consented to electronic service via the Court’s CM/ECF system per Local Rule CV-5(a)(3).

/s/ Jason W. Wolff

11196374.doc

DEFENDANTS’ BRIEF REGARDING THE TERM “BROWSER APPLICATION” - Page 11